This blog, Criminal HIV Transmission, a collection of published news stories, opinion, and resources about so-called 'HIV crimes', has now been incorporated into the new HIV Justice Network website, and will not be updated as of November 15th 2012.
For more information about the HIV Justice Network, please visit http://www.hivjustice.net

Saturday, 21 November 2009

Robin Lee St. Clair, a woman who used condoms for her one-night encounter, and who revealed her HIV status when the condom broke to allow the man to access PEP, has been sentenced to two years' house arrest, according to a report in the Toronto Sun.

Robin St. Clair, 28, who pleaded guilty to two counts of sexual assault, cried in court today when she was told she would be registered as a sex offender for life and would be made to provide a DNA sample. [...] She will also be on probation for three years after the house arrest.

I originally thought it was just one count, but no - they had sex twice! With condoms!!

The man had intercourse with St. Clair twice and on the second occasion the condom ripped.

In my original post, below, I had wondered whether the judge, Justice Paul Taylor, might actually be a good guy for considering 'just' a 90 day prison sentence. I'm not sure that two years' house arrest is preferable.

But, actually, Justice Paul Taylor is just as irrational as most of the rest of the criminal justice system when it comes to HIV. His comments – that sex with condoms with someone who knows they are HIV-positive but doesn't tell you is unlawful – are not exactly true to the spirit of the Cuerrier decision.

Criminal law has a role to play when people with HIV put the lives of others at risk. No one would voluntarily get the disease," Taylor said. "(The man) was exposed to a risk he shouldn't have been exposed to. If he was told of her status he would have rejected her, which was his decision to make."

Court heard that the man had a 1-in-2,000 chance of contracting the HIV, but remains disease free.

"To him it is still very real and continues to debilitate him," Taylor said. "The melancholy fact is condoms break."

Taylor said St. Clair's actions weren't calculating so he decided to let her serve the time under house arrest.

"She wasn't seeking out men to expose them to the disease," Taylor said. "But she is not blessed with all the intellectual gifts."

Such comments suggest that Justice Taylor needs to reread Cuerrier and reassess if it really means what he thinks it is saying. Cuerrier established that consent to otherwise consensual sex is invalid if a person living with HIV does not disclose this before engaging in conduct that poses a "significant risk" of HIV transmission. Having sex with condoms - even if they do occasionally break – is not a "sigificant risk". A 1-in-2000 chance of acquiring HIV is not a "significant risk".

Yet the careful use of condoms might be found to so reduce the risk of harm that it could no longer be considered significant

Mr Justice Corey, R v Cuerrier (Supreme Court of Canada, 1998)

This is how people have sex in the real world. Having sex with a condom with someone who is HIV-positive, is safer sex not safe sex. That does not eliminate risk, but it is within the bounds of life's normal risks.

I'm certain that Canadian advocates will be outraged and disappointed with Justice Taylor.

Since Ms St Clair pleaded guilty, there can be no appeal, and this will not create a legal precedent. The lesson to be learned is that people who are charged under Canada's HIV non-disclosure law need good legal advice. If she had pleaded not guilty and this had gone to trial, she would have been found innocent.

However, what Canada really needs is prosecutorial guidelines like those produced in England & Wales, that set out where the Crown should prosecute based on current law. This case should never have been prosecuted in the first place.

Robin Lee St. Clair pleaded guilty in June to two counts of aggravated sexual assault for not disclosing her HIV status to a man she met for a one-night stand in 2007. (At least this was only charged as aggravated sexual assault; two men currently face attempted murder charges for exactly the same 'crime')

Should the Hamilton woman be sent to jail for having sex with a Toronto man without telling him she has HIV? Or has the 28-year-old already paid her debt to society -- her photo plastered on the front page of her local newspaper, she and her son kicked out of the community pool? Is she a criminal or just a coward afraid to divulge her terrible secret as she looked for love? Should she be punished? Or rehabilitated? It depends on which side of the Finch Ave. courtroom you sat on yesterday.

The article also explains, for the first time, what happened between Ms St. Clair and the complainant. It seems that Ms St. Clair did disclose her HIV status to the man - but after the condom they were using broke. This is what all responsible HIV-positive individuals should do in such a situation, so that the HIV-negative individual can access PEP. But rather than thank her for the information, the man ran to the police.

The most worrying thing about this case is the fact that the Crown decided to prosecute, despite this man being the only complaint.

Crown Tim Morgan asked the judge to send the single mom to jail for 90 days as both "deterrence and denunciation" of her exposing her victim to possible infection without his consent. The fact that she insisted on a condom doesn't mitigate what she did, the prosecutor added. "It's not good enough -- in fact, it's criminal -- to just use a condom and be absolved of your responsibility. You have to disclose."

Mr Morgan is dead wrong, but it seems that Justice Taylor did not pick up on the difficulties with the law around issues of HIV disclosure and "significant risk". This issue - whether HIV-positive Canadians must disclose prior to sex even with a condom - has not yet been decided by the Supreme Court, but it is not definitively considered to be "criminal", as he asserts.

The majority judgment was clearly not imposing a blanket obligation on persons living with HIV to disclose their status in every sexual encounter. What was not clear is where the line would be drawn between activities requiring disclosure and those not requiring disclosure. For example, Justice Cory [writing for the majority in the Cuerrier decision] contemplated that disclosure might not be required with respect to intercourse for which a condom was used, but did not make an explicit ruling on the issue.

Ms St. Clair's lawyer, Kim Edward, argued that the prefered sentence would be a conditional discharge,

insisting her client is a "simple" woman who can neither read nor write very well, a good mother and community volunteer who is educating herself -- better late than never, it seems -- about the moral and legal responsibilities that come with the HIV she has had since 2003. "This is not one of those individuals who is callously and intentionally infecting others," Edward told the court.

IMPACT STATEMENT

I'm always interested in hearing what the impact of having a one-night stand with someone who you discover is HIV-positive must be like. I mean, surely if you are having a one-night stand you must know that there is a chance that the person you are sleeping with will have HIV. At least one-in-four people with HIV don't know they have the virus, so even if they wanted to disclose this before sex, they couldn't.

Ms St. Clair's 'victim' doesn't appear to have considered this; and he wasn't at all grateful that she disclosed following the breakage of the condom, which would have allowed him to seek medical attention to reduce the risk of becoming HIV-positive.

While he remains HIV-negative, he writes in his victim impact statement entered in court yesterday that he is plagued with embarrassment and will never be the same. "I am no longer able to sleep through the night due to anxiety and stress," he wrote. "I am stuck in a box ... I don't care about anything anymore. The year of doing blood work to make sure I was OK has affected me the most. The waiting period of a whole year felt like an eternity to me. Waiting to see if I was affected by the disease has had the most fearful impact on my life. I am still not 100% sure in my mind that I am OK."

I am constantly amazed that people who have been exposed to HIV via, say, a broken condom, or a bite, agonise over their extremely low risk for much longer than is necessary. The latest generation HIV tests can pick up antibodies within ten days, and experts now agree that the 'window period' between infection and detection is less than one month. Why did this man's uncertainty last a year? Is it really Ms. St Clair's fault that this man worries excessively? And what exactly is he embarrassed about? If I were him, I'd be embarrassed that I complained the police about something that was clearly as much his responsibility as Ms St Clair's following the accidental breakage of a condom.

Finally, I must comment on - and protest - the language used by Ms Mandel in the article, who uses the usual 'deadly weapon' cliché to describe a consensual sexual act between two adults.

[Ms St Clair is] like a woman who has played Russian roulette with at least one man's life...she carries a weapon as lethal as any gun.

Canada: Hamilton woman get two years house arrest after pleading guilty to HIV exposure following condom failure (update)

Update: November 21st

Robin Lee St. Clair, a woman who used condoms for her one-night encounter, and who revealed her HIV status when the condom broke to allow the man to access PEP, has been sentenced to two years' house arrest, according to a report in the Toronto Sun.

Robin St. Clair, 28, who pleaded guilty to two counts of sexual assault, cried in court today when she was told she would be registered as a sex offender for life and would be made to provide a DNA sample. [...] She will also be on probation for three years after the house arrest.

I originally thought it was just one count, but no - they had sex twice! With condoms!!

The man had intercourse with St. Clair twice and on the second occasion the condom ripped.

In my original post, below, I had wondered whether the judge, Justice Paul Taylor, might actually be a good guy for considering 'just' a 90 day prison sentence. I'm not sure that two years' house arrest is preferable.

But, actually, Justice Paul Taylor is just as irrational as most of the rest of the criminal justice system when it comes to HIV. His comments – that sex with condoms with someone who knows they are HIV-positive but doesn't tell you is unlawful – are not exactly true to the spirit of the Cuerrier decision.

Criminal law has a role to play when people with HIV put the lives of others at risk. No one would voluntarily get the disease," Taylor said. "(The man) was exposed to a risk he shouldn't have been exposed to. If he was told of her status he would have rejected her, which was his decision to make."

Court heard that the man had a 1-in-2,000 chance of contracting the HIV, but remains disease free.

"To him it is still very real and continues to debilitate him," Taylor said. "The melancholy fact is condoms break."

Taylor said St. Clair's actions weren't calculating so he decided to let her serve the time under house arrest.

"She wasn't seeking out men to expose them to the disease," Taylor said. "But she is not blessed with all the intellectual gifts."

Such comments suggest that Justice Taylor needs to reread Cuerrier and reassess if it really means what he thinks it is saying. Cuerrier established that consent to otherwise consensual sex is invalid if a person living with HIV does not disclose this before engaging in conduct that poses a "significant risk" of HIV transmission. Having sex with condoms - even if they do occasionally break – is not a "sigificant risk". A 1-in-2000 chance of acquiring HIV is not a "significant risk".

Yet the careful use of condoms might be found to so reduce the risk of harm that it could no longer be considered significant

Mr Justice Corey, R v Cuerrier (Supreme Court of Canada, 1998)

This is how people have sex in the real world. Having sex with a condom with someone who is HIV-positive, is safer sex not safe sex. That does not eliminate risk, but it is within the bounds of life's normal risks.

I'm certain that Canadian advocates will be outraged and disappointed with Justice Taylor.

Since Ms St Clair pleaded guilty, there can be no appeal, and this will not create a legal precedent. The lesson to be learned is that people who are charged under Canada's HIV non-disclosure law need good legal advice. If she had pleaded not guilty and this had gone to trial, she would have been found innocent.

However, what Canada really needs is prosecutorial guidelines like those produced in England & Wales, that set out where the Crown should prosecute based on current law. This case should never have been prosecuted in the first place.

Robin Lee St. Clair pleaded guilty in June to two counts of aggravated sexual assault for not disclosing her HIV status to a man she met for a one-night stand in 2007. (At least this was only charged as aggravated sexual assault; two men currently face attempted murder charges for exactly the same 'crime')

Should the Hamilton woman be sent to jail for having sex with a Toronto man without telling him she has HIV? Or has the 28-year-old already paid her debt to society -- her photo plastered on the front page of her local newspaper, she and her son kicked out of the community pool? Is she a criminal or just a coward afraid to divulge her terrible secret as she looked for love? Should she be punished? Or rehabilitated? It depends on which side of the Finch Ave. courtroom you sat on yesterday.

The article also explains, for the first time, what happened between Ms St. Clair and the complainant. It seems that Ms St. Clair did disclose her HIV status to the man - but after the condom they were using broke. This is what all responsible HIV-positive individuals should do in such a situation, so that the HIV-negative individual can access PEP. But rather than thank her for the information, the man ran to the police.

The most worrying thing about this case is the fact that the Crown decided to prosecute, despite this man being the only complaint.

Crown Tim Morgan asked the judge to send the single mom to jail for 90 days as both "deterrence and denunciation" of her exposing her victim to possible infection without his consent. The fact that she insisted on a condom doesn't mitigate what she did, the prosecutor added. "It's not good enough -- in fact, it's criminal -- to just use a condom and be absolved of your responsibility. You have to disclose."

Mr Morgan is dead wrong, but it seems that Justice Taylor did not pick up on the difficulties with the law around issues of HIV disclosure and "significant risk". This issue - whether HIV-positive Canadians must disclose prior to sex even with a condom - has not yet been decided by the Supreme Court, but it is not definitively considered to be "criminal", as he asserts.

The majority judgment was clearly not imposing a blanket obligation on persons living with HIV to disclose their status in every sexual encounter. What was not clear is where the line would be drawn between activities requiring disclosure and those not requiring disclosure. For example, Justice Cory [writing for the majority in the Cuerrier decision] contemplated that disclosure might not be required with respect to intercourse for which a condom was used, but did not make an explicit ruling on the issue.

Ms St. Clair's lawyer, Kim Edward, argued that the prefered sentence would be a conditional discharge,

insisting her client is a "simple" woman who can neither read nor write very well, a good mother and community volunteer who is educating herself -- better late than never, it seems -- about the moral and legal responsibilities that come with the HIV she has had since 2003. "This is not one of those individuals who is callously and intentionally infecting others," Edward told the court.

IMPACT STATEMENT

I'm always interested in hearing what the impact of having a one-night stand with someone who you discover is HIV-positive must be like. I mean, surely if you are having a one-night stand you must know that there is a chance that the person you are sleeping with will have HIV. At least one-in-four people with HIV don't know they have the virus, so even if they wanted to disclose this before sex, they couldn't.

Ms St. Clair's 'victim' doesn't appear to have considered this; and he wasn't at all grateful that she disclosed following the breakage of the condom, which would have allowed him to seek medical attention to reduce the risk of becoming HIV-positive.

While he remains HIV-negative, he writes in his victim impact statement entered in court yesterday that he is plagued with embarrassment and will never be the same. "I am no longer able to sleep through the night due to anxiety and stress," he wrote. "I am stuck in a box ... I don't care about anything anymore. The year of doing blood work to make sure I was OK has affected me the most. The waiting period of a whole year felt like an eternity to me. Waiting to see if I was affected by the disease has had the most fearful impact on my life. I am still not 100% sure in my mind that I am OK."

I am constantly amazed that people who have been exposed to HIV via, say, a broken condom, or a bite, agonise over their extremely low risk for much longer than is necessary. The latest generation HIV tests can pick up antibodies within ten days, and experts now agree that the 'window period' between infection and detection is less than one month. Why did this man's uncertainty last a year? Is it really Ms. St Clair's fault that this man worries excessively? And what exactly is he embarrassed about? If I were him, I'd be embarrassed that I complained the police about something that was clearly as much his responsibility as Ms St Clair's following the accidental breakage of a condom.

Finally, I must comment on - and protest - the language used by Ms Mandel in the article, who uses the usual 'deadly weapon' cliché to describe a consensual sexual act between two adults.

[Ms St Clair is] like a woman who has played Russian roulette with at least one man's life...she carries a weapon as lethal as any gun.

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About this blog

This blog is now incorporated into new HIV Justice Network website which is intended to be a global information and advocacy hub for individuals and organisations working to end the inappropriate use of the criminal law to regulate and punish people living with HIV. There you will find the latest news and cases, searchable by date, country, and case type, plus all kinds of advocacy resources (including video). The information on the website is also classified by 25 topics, under six headings: Advocacy; Alternatives; Impact; Law Enforcement; Laws and Policies; and Science.

The new HIV Justice Network website incorporates all the posts from my blog, Criminal HIV Transmission, which I began in 2007. Little did I know at the time that it would become an important global resource, filling a much-needed gap by capturing what is happening in real time. It was only when I attended AIDS 2008 in Mexico City, and discovered how many people knew of me and my work, that I realised how useful a resource it had become for advocates, researchers, lawyers and others from all over the world.

Knowing that the blog served as an international information and advocacy hub placed enormous pressure on my time and personal resources. Until the beginning of 2012, the blog and its associated advocacy work received no funding – save the few wonderful individuals who donated via Paypal and a small grant from IPPF (thank you!). So I’m very grateful to The Monument Trust for its generous support which has allowed me to sustain, develop and expand the blog into the HIV Justice Network. I’d also like to thank Kieran McCann and Thomas Paterson from NAM, who designed and developed the site, as well as NAM’s Executive Director, Caspar Thompson, for his support and guidance.

HIV and the Criminal Law

This international resource, HIV and the Criminal Law, which I wrote and edited for NAM, is available as an A5 book and at www.aidsmap.com/law. To order your copy visit www.aidsmap.com/law, or contact NAM at +44 (0)20 7840 0050, email: info@nam.org.uk If you are based in a low or lower middle income country, as defined by the World Bank, and would like a free copy of this book please contact NAM.

Why Criminalisation Matters

Click on the image above to listen to Sean Strub, Catherine Hanssens, Vanessa Johnson and I discuss why HIV criminalisation in the US is a major issue for public health and human rights. The panel took place in February 2011 as part of the eQuality Thinking virtual convention.

Funders Concerned About AIDS

I delivered the keynote address, 'Combating HIV Criminalization at Home & Abroad', to the annual gathering of US-based HIV funders in Washington DC in December 2010. Video of my presentation is now available. Visit the FCAA website to watch it online.

Criminalisation of HIV Exposure and Transmission: Global Extent, Impact and The Way Forward

This meeting by and for advocates against the criminalisation of HIV nondisclosure, exposure and non-intentional transmission was held on July 18th 2010 prior to AIDS2010 in Vienna and co-organised by the Canadian HIV/AIDS Legal Network, the Global Network of People Living with HIV and NAM.

This poster presented to the XVIII International AIDS Conference in Vienna in July 2010, highlights how the US criminal justice system routinely breaches international human rights standards [click on the image to download an interactive pdf file]